Cobb v. Cobb
282 S.E.2d 591
N.C. Ct. App.
1981
Check Treatment
VAUGHN, Judge.

The issue presented is whether the property settlement provisions of the separation agreement incorporated by reference in *232the divorce decree are enforceable by contempt proceedings. We hold that they are and affirm that part of the order.

A separation agreement which is merely approved by the court does not assume the status of a judicial decree. It exists only as a contract between the parties, and is therefore not enforceable by contempt proceedings nor capable of modification except with the consent of both parties. Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240 (1964).

A separation agreement, however, which is incorporated by reference into a judgment, becomes part of the judicial decree. In such a case, the court adopts the agreement of the parties as its own determination of the parties’ rights and obligations. The terms of the separation agreement accordingly rest on both contract and a court order. Id. at 70, 136 S.E. 2d at 243.

The terms of the separation agreement in the present case were clearly incorporated into the divorce judgment of 22 November 1978. The court concluded that “the law permits the Separation Agreement between the parties to be made a part of the Judgment in this case. . . .” It ordered that the separation agreement be “incorporated by reference herein in this Judgment as a part of this ordering clause in the same manner and to the same extent as if set forth verbatim in this Judgment and is considered to be a condition of this Judgment.” Therefore, all terms of the separation agreement entered into between plaintiff and defendant on 24 July 1978, became part of the court’s judicial decree.

By incorporating the terms of a separation agreement in a divorce decree, the court facilitates enforcement of the separation agreement’s terms. Courts, however, recognize some distinction between alimony provisions and property settlement provisions of an incorporated separation agreement. It is well established that the alimony provisions are enforceable by contempt. Levitch v. Levitch, 294 N.C. 437, 241 S.E. 2d 506 (1978); Mitchell v. Mitchell, 270 N.C. 253, 154 S.E. 2d 71 (1967). The court may also modify the incorporated alimony provisions if changed circumstances warrant. Britt v. Britt, 49 N.C. App. 463, 271 S.E. 2d 921 (1980). Determinations of property rights contained in an incorporated separation agreement, however, are beyond the power of the court to modify without the consent of both parties. Holsomback v. Holsomback, 273 N.C. 728, 161 S.E. 2d 99 (1968). Defendant *233argues that because the court lacks jurisdiction to modify incorporated property settlements, it also lacks jurisdiction to enforce such terms by its contempt power.

Defendant bases his argument in part on language found in Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240 (1964). In that opinion, Justice Sharp stated, “. . . absent special circumstances, any judgment which awards alimony, notwithstanding it was entered by the consent of the parties, is enforceable by contempt proceedings should the husband wilfully fail to comply with its terms. If the judgment can be enforced by contempt, it may be modified and vice versa.” 262 N.C. 67, 70, 136 S.E. 2d 240, 243 (1964). Defendant submits that the logical extension of the Bunn decision is that if a judgment cannot be modified, it cannot be enforced by contempt. Therefore, he argues, property settlement provisions of a separation agreement incorporated into a divorce decree which cannot be modified, cannot be enforced by contempt. We disagree with defendant’s interpretation of Bunn. The phrase “vice versa” does not mean the negative of what was previously stated. “Vice versa” means “with the order changed.” Webster’s Third New International Dictionary 2549 (1968). In Bunn, the Court did not address the question presented by this case.

There is a rationale for applying the court’s modification powers differently to a property settlement and an alimony award. A property settlement is a division of property and property interests. A judgment which determines property rights creates vested rights in the parties which cannot be divested. Alimony, however, is payment for the support of the defendant spouse. Alimony awards, therefore, must necessarily be capable of modification as the financial affairs of both parties change.

We see no rationale, however, for treating differently property and alimony provisions of an incorporated separation agreement as far as the court’s contempt powers are concerned. Both provisions are part of the court order. In their pleadings, both parties joined in the prayer that the terms of the deed of separation be “made subject to the orders of this court.” The court was not, of course, required to enter the judgment as requested. The court did, however, enter the judgment as prayed for, and it would demean the court to allow defendant to successfully argue that the court cannot enforce those portions of the decree that defendant might elect to ignore, whether they be for the payment *234of alimony or other considerations that might have prompted the joint prayer for divorce and judicial settlement of the affairs arising out of the marriage the parties were asking the State to dissolve.

We dismiss defendant’s argument that enforcement by contempt violates North Carolina’s constitutional provision against imprisonment for a debt. N.C. Const, art. 1, § 28. The court is not imprisoning defendant for his inability to pay a debt for his wilful disobedience of the order he and his wife asked the court to enter.

We agree with defendant, however, that the court did not make the necessary findings of fact to support its judgment of imprisonment upon defendant’s failure to make payment within thirty days. A failure to obey a court order cannot be punished by contempt proceedings unless the disobedience is wilful. Thus, the court must find as a fact that defendant possessed the means to comply with the order of the court during the period when he is held to be in default. Mauney v. Mauney, 268 N.C. 254, 257, 150 S.E. 2d 391, 393 (1966).

In its order of 13 January 1981, the court made the following finding of fact: “The Defendant has failed to pay amounts due under the Separation Agreement and judgment other than child support, but such failure is not wilful as of the date of this hearing. ” (Emphasis added). Before the court can order defendant imprisoned for nonpayment, it must make a specific finding that defendant had the ability to pay yet wilfully refused to do so. The order is, consequently, modified by striking that part ordering defendant’s imprisonment in the event he should fail to pay the arrearage within 30 days of the order. In the event defendant has failed to comply with the order, the court may proceed in accordance with this opinion.

Modified and affirmed.

Judges Arnold and Webb concur.